Bir Singh vs Hari Ram

H.S. Brar, J.—Briefly stated the facts as taken out from the pleadings of the parties are as under:

The plaintiffHari Ram has alleged in his plaint that he purchased agricultural land measuring 8 Kanals comprised in Khasra No. 29/25 (as mentioned in the heading of the plaint) along with some other land, situated in village Nand Singh Wala from one Partapa regarding which Mutation was sanctioned in his favour on 24.9.1972 and consequently, he obtained possession of the entire land including the land in dispute. It is then alleged by the plaintiff that about 11/2 years back the defendant Bir Singh took possession of the land in dispute forcibly and he had to file this suit for possession when Bir Singh declined to deliver back the possession of the land to the plaintiff.

Suit was resisted by the defendantBir Singh on the ground that the plaintiff never remained in possession of the land in dispute; that Preet Mohinder Singh and Hardev Singh of village Nandsinghwala were the owners; that the land in dispute is in his possession in the capacity of tenant since the time of his forefathers; that Preet Mohinder Singh and Hardev Singh were big landowners; that because the land in dispute was a part of the surplus area, therefore, it could not be allotted to anybody else except him; the allotment of this surplus land according to him, to any other person was illegal and nullity. He further stated that before allotment to any other person he was never served with any notice and thus, according to him the suit was liable to be dismissed.

Replication was filed by the plaintiff controverting the pleas taken up by the defendant and asserted his contentions made in the plaint. It was asserted in the replication that the land in dispute and some other land was allotted to party in due course of law and procedure and from him the plaintiff purchased the land in dispute along with some other land.

From the pleadings of the parties following issues were framed by the trial Court:

Whether the plaintiff is the owner of the suit land ? OPP

1A. Whether the plaintiff was dispossessedfrom the suit land by the defendant (sic) year before the institution of the suit ? OPP

Whether the defendant is the tenant in possession of the suit land under Preet Mohinder Singh ? If so, its effect ? OPD.

Whether this Court has no jurisdiction ? D.

Relief.

The trial Court after hearing the parties and going through the relevant record, decided issue No. 1 in favour of plaintiff and held him as owner of the land in dispute. Issue No. 1A was decided against the plaintiff wherein it was held that the disputed land never came under the possession of the plaintiff. Issue No. 2 was decided by the trial Court in favour of the defendant to the effect that he was not a tenant under Preet Mohinder Singh. Under issue No. 3, it was held that as relationship of landlord and tenant existed between the plaintiff and the defendant, the Civil Court had no jurisdiction to entertain the suit. Ultimately the suit of the plaintiff was dismissed.

On appeal filed by the plaintiff before the District Judge, the First Appellate Court reversed the finding of the trial Court and the suit of the plaintiff for possession was decreed in favour of the plaintiff and against the defendant. However, the learned first Appellate Court maintained the decision of the trial Court in so far as the plaintiff was held to be the owner of the land in dispute. Hence this Regular Second Appeal.

The evidence which clinches the ownership of Hari Ram on the land in dispute is Ex. P1, the copy of the report roznamcha dated 19.1.1969 vide which the possession of the land described therein was delivered to the allottee Pratapa. The land in dispute comprised in Khasra No. 29/25 (8 kanals) also stands mentioned in this roznamcha; Ex. PW. 7/A is the copy of the registered sale deed dated 6.10.1970 vide which Pratapa had sold his land to the plaintiff Hari Ram; Ex D1 is the copy of Jamabandi for the year 197778 wherein Hari Ram plaintiff had been shown as owner of the land in dispute and the defendant Bir Singh has been described as his tenant; Ex. D3 is the copy of Jambandi pertaining to the years 197273 wherein plaintiff Hari Ram has been shown as owner and the defendant Bir Singh has been shown as his tenant. It remains undisputed that the land comprised in Khasra No. 29/25 measuring 8 kanals is a part of the land belonging to Preet Mohinder Singh and Hardev Singh which was declared surplus and the same was allotted to said Pratapa who subsequently sold it to Hari Ram plaintiff. Whether the allotment of land to Pratapa is legal or otherwise, is not the point in controversy in this case. The legality or illegality could not be agitated in these proceedings. I thus find no infirmity in this finding of the courts below whereby they have held Hari Ram plaintiff to be the owner of the land in dispute.

The trial Court after taking into consideration the various documents i.e. the Khasra Girdawaris and the Jamabandis, had held that the plaintiff Hari Ram never came in possession of the land but on the other hand, the defendant Bir Singh has been shown as a tenant. The trial Court has referred to Ex.D5, the copy of the Khasra Girdawari in respect of Kharif 1973 to 1977 wherein Bir Singh has been shown in possession of the land in dispute as a tenant. In the Jamabandi of the year 197778 Ex. D1, defendant Bir Singh had been described as a tenant of the plaintiff Hari Ram. Similarly, in the Jamabandi of the year 197273, the plaintiff Hari Ram has been shown as owner and defendant Bir Singh has been shown as his tenant. The learned trial Court has dismissed the suit for possession of the plaintiff on the ground that the relationship of tenant and owner having been established between the plaintiff and the defendant, only suit for ejectment and not suit for possession could be filed by the plaintiff. However, this decision of the trial Court did not find favour with the District Judge who reversed the finding of the trial Court by holding that the defendant could protect his possession from a true owner only if he had pleaded and proved that he was a tenant of the land in dispute under him. The defendant, according to the learned First Appellate Court, did not raise this plea in the written statement. His plea, according to the First Appellate Court, was that he was a tenant under Preet Mohinder Singh etc. the owners of the land before the same was declared surplus from his forefathers.

I do not find any force in the judgment of the First Appellate Court and the reasoning on the basis of which it has been held that relationship of tenant and owner is not proved between the parties. The defendant Bir Singh has taken a definite stand in his written statement that the land in dispute is in his possession in the capacity of a tenant since the time of his forefathers. Preet Mohinder Singh and Hardev Singh were big landowners and the land in dispute being a part of the surplus area of the big landowners, could not be allotted to anybodyelse except him. He has claimed himself to be tenant of the land thoughout till today. It is pestinent to note here that it has been held by the courts below that though the plaintiff has been held to be an owner on the basis of the evidence on the file, but he never came into possession of the land. The land throughout remained in possession of the defendant Bir Singh. It is further proved from the evidence on the file that Bir Singh defendant has shown as tenant of the plaintiff Hari Ram also. In the Khasra Girdawari in respect of Kharif 1973 to Rabi 1977 (Ex. D5), Bir Singh defendant has been shown in possession of the land in dispute as tenant. In the copy of Jamabandi of the year 197778, Ex. D1, Hari Ram plaintiff has been shown as owner of the land in dispute and the defendant Bir Singh has been described as his tenant. Similarly, in the Jamabandi pertaining to the year 197273, Ex D3, plaintiff Hari Ram has been shown as owner and the defendant Bir Singh has been shown as his tenant. It is thus clearly established on the record that Bir Singh respondent remained in possession of the land in dispute as tenant throughout earlier before the big landlords and later on, under the plaintiff Hari Ram. When the defendant remained in possession of the land as a tenant thoughout, then the question of inducting him as tenant afresh by the plaintiff Hari Ram did not arise. Bir Singh defendant might be a tenant of the land in dispute under Preet Mohinder Singh and others before it was allotted to Pratapa but after the allotment of land in dispute to Pratapa, the defendant Bir Singh became a tenant of the land in dispute under Pratapa and after it was purchased by the plaintiff Hari Ram, the defendant Bir Singh automatically became the tenant in possession of the land under him, i.e. Hari Ram plaintiff. Moreover, it is proved on the record that plaintiff Hari Ram though became the owner of the land in dispute, but he never came into possession of the same. The latest entries of revenue record reveal that the plaintiff is the owner of the land in dispute and the defendant is his tenant. Presumption of truth is attached to the entries of the revenue record. The plaintiff has not produced any evidence to defend these revenue entries showing defendant Bir Singh as his tenant.

The relationship of landlord and tenant has been clearly established between the plaintiff and the defendant. The First Appellate Court has erred in holding it otherwise. The judgment of the learned First Appellate Court thus holding defendant Bir Singh as a trespasser is not sustainable.

In view of my discussion above, this appeal is allowed with costs throughout. The judgment and decree dated 30.9.1980 of the First Appellate Court is set aside and the judgment/decree of the trial Court dated 22.4.1980 is affirmed.